896 F.Supp. 816 (N.D.Ind. 1995), 1 95-CV-4, Hendry v. GTE North, Inc.

Docket Nº:1 95-CV-4
Citation:896 F.Supp. 816
Party Name:Hendry v. GTE North, Inc.
Case Date:August 17, 1995
Court:United States District Courts, 7th Circuit, Northern District of Indiana
 
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896 F.Supp. 816 (N.D.Ind. 1995)

Debrah K. HENDRY, Plaintiff,

v.

GTE NORTH, INC., Defendant.

No. 1:95-CV-4.

United States District Court, N.D. Indiana, Fort Wayne Division.

Aug. 17, 1995

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[Copyrighted Material Omitted]

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Christopher C. Myers, Myers and Geisleman, Fort Wayne, IN, for plaintiff.

Thomas W. Belleperche, Hunt, Suedhoff, Borror and Eilbacher, Fort Wayne, IN, for defendant.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.

I. INTRODUCTION

This matter is before the Court 1 on the motion of the Defendant, GTE North, Inc.

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("GTE"), for summary judgment filed June 21, 1995. On July 6, 1995, the Plaintiff, Debrah K. Hendry ("Hendry"), filed a memorandum in opposition. On July 17, 1995, GTE filed its reply.

The record before the Court consists of deposition excerpts, affidavits, and the stipulated medical records of Hendry.

For the reasons hereinafter provided, the motion for summary judgment will be GRANTED in part and DENIED in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

On January 3, 1995, Hendry filed her complaint, 2 alleging race discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; disability discrimination under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; and a violation of the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq. Hendry in her response brief acknowledged that she does not have a race discrimination claim, and the Court will grant summary judgment accordingly. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(4).

Before her termination on February 24, 1994, Hendry had been a long-time GTE employee, having commenced employment on October 15, 1973. However, the critical period for our purposes only involves the last three years of her employment. It was during that period of time that Hendry started suffering from migraine headaches. See, Hendry Dep., p. 17.

At least during this initial period of time, Hendry was supervised by JoAnn C. Kaley ("Kaley"), a supervisor of the "repair answer center and customer billing center." See, Kaley Aff., ¶ 3. Hendry viewed Kaley as a sympathetic supervisor, and one who would accommodate her needs and absences.

Nevertheless, GTE has an annual attendance expectation and standard of two percent (2%). Kaley Aff. ¶ 11. GTE does not specifically allocate personal days or sick days in their absenteeism policy. Hendry Dep. errata sheet, p. 28. Rather, only "time off arranged at the mutual convenience of management and hourly employees" is excluded from the computation. 3 See, Exh. 1 to Hendry Aff. GTE's policy, with respect to disciplining employees who have absenteeism problems, is: first, a verbal warning; second, a written warning; third, suspension; and finally, termination. See, Kaley Aff., ¶ 4.

By 1993, Hendry's absenteeism rate at GTE, as documented by Kaley, exceeded the company's standard. See, Exh. A. to Kaley Aff. In fact, Hendry received two (2) written warnings in both February and May, 1993, and ultimately received a three (3) day suspension without pay in June, 1993. Id. The written suspension letter told Hendry: "your absences far exceed the Company's expectation and standard of two percent (2%) or less."

Nonetheless, there would be times when Hendry's attendance would improve--such that she would meet the two percent (2%) standard. See, Exh. 3C to Hendry's Aff. (showing a 1.7% hourly absenteeism rate as of April 19, 1993).

Ultimately, in late 1993, the operation in which Hendry was working was closed by GTE, and she was transferred to a different department under the supervision of Dan Thornburg ("Thornburg"), a long-time GTE supervisor. See, Thornburg Aff. ¶ 2-4. Hendry thus assumed, on January 3, 1994, the position of "service clerk" in Thornburg's department. Id. The service clerk position in that department had four (4) basic functions that had to be performed on a daily basis. Id. at ¶ 5.

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By this time, Hendry's migraine headaches (caused apparently by stress and tension) had become both more frequent and severe. Hendry Dep., p. 17. Id. The migraines started in approximately 1991, and had a frequency of three (3) to four (4) times per week. Id. at 30-31. By the time she transferred to Thornburg's department, however, they were occurring daily. Hendry Dep., p. 31. Some days the headaches were so severe that Hendry could not work; other days the headaches were less severe and she could work. Id. at 32. When they occurred, the headaches would make her feel nauseous, she could not eat or drink, and it would affect her equilibrium to such an extent that she felt like she was going to fall and needed to be assisted out of bed. Id. at 32. She also had severe sensitivity to light, and could not drive. Hendry Dep., errata sheet p. 32. On several occasions she vomited at work, and customer voices sounded "fuzzy and muffled" such that customers had to repeat themselves. Id.

Hendry claims that her symptoms depended on her medication, which kept changing. Id. at 31. The medication would initially help, but ultimately "it wouldn't work ... any longer." Id. at 31.

Nonetheless, Hendry claims that during this period of time, her supervisors, at least until she ended up in Thornburg's department, accommodated her migraine headaches. For example, a supervisor would allow her to leave for doctor appointments, and after the appointment, make up the time missed. Hendry Dep. errata sheet p. 28. At other times, she was permitted to go to a separate room and lay down. Hendry Dep., p. 30. However, most of all, Hendry claims that prior supervisors accommodated her by letting her use vacation days for missed work. Hendry Dep., pp. 27, 29-30. Hendry was allowed four (4) weeks of vacation a year. Id. at 29.

However, this changed when she went to Thornburg's department, because he would apparently not allow Hendry to use vacation days for her migraine headache absences. Hendry Dep., p. 25. Nonetheless, during the first two (2) weeks that Hendry was working in Thornburg's department, she was on vacation. See, Exh. 4 to Hendry Aff. Hendry knew, however, that it was up to the supervisor's discretion whether she would be allowed to take accumulated vacation days. See, Hendry Aff. ¶ 4, Hendry Dep., pp. 28-29. At any rate, after transferring to Thornburg's department, one of the accommodations previously shown to Hendry by her supervisors (allowing her to take vacation time off for her migraine headaches) ended. See, Hendry Aff. ¶ 6.

After the first two (2) weeks of her January, 1994 vacation, Hendry still missed work. After she started her vacation, Hendry received an extension of it to January 17, 1994. Thornburg Aff. ¶ 8. On January 18, 1994, Hendry requested time off because of an illness 4 and this was also apparently counted as vacation time. See, Exh. 4 to Hendry Aff. See, Exh. 4 to Hendry Aff. It was during this time that GTE had made arrangements for Hendry's predecessor (and indeed, her trainer) to be working in Thornburg's department. See, Thornburg Aff. ¶ 6.

On January 20, 1994, and after Hendry reported to work, Thornburg spoke to Hendry about the importance of her attendance and that she was now holding a "one-person operation"; i.e., that she was the only one in the department who performed the four functions that must be performed by the "service clerk" on a daily basis. Thornburg Aff. pp 5, 10. Nevertheless, after this counseling session Hendry missed work again on January 24 and 25, 1994, although the time was counted as excused absences. 5 See, Exh. 4 to Hendry Aff. On January 26, 1994, Hendry reported to Thornburg that she was quitting GTE. See, Thornburg Aff. ¶ 13. Later that same day she asked that her

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resignation be rescinded. Id. at ¶ 14. Thornburg, at approximately 6:00 p.m. that day (after attempting to contact Hendry on a number of occasions during the day), phoned to tell her that her resignation was rescinded, but warned her that if she missed one more day before her attendance rate was at or below two percent (2%), it would result in her termination. See, Thornburg Aff. ¶ 15 and Exh. A, p. 4. 6 When she arrived for work on January 27, 1994, (thus indicating that she was not quitting) Hendry was again counselled about her attendance. See, Thornburg Aff. ¶ 16. In fact, Hendry was given a five (5) day suspension and a discipline letter was read to her. See, Exh. A to Thornburg Aff. 7 By GTE's measure, this was the last discipline measure to be taken prior to termination. See Kaley aff. ¶ 4.

Ultimately, on February 23, 1994, Hendry missed another day of work, reportedly for a migraine headache. See, Exh. A to Thornburg Aff. On February 24, 1994, Thornburg placed her on "indefinite suspension pending further investigation" and on March 7, 1994, she was terminated effective February 24, 1994. See, Thornburg Aff. ¶ 19. At the time that Hendry was terminated, her absenteeism occurrence rate was 2.89% (7 occurrences), and her absence rate was 9.64% (192 hours). Thornburg Aff. ¶ 18. Hendry does not contest this calculation.

Hendry claims that Thornburg and GTE should have continued to accommodate her (i.e., by telling her to use vacations days as sick days) until she found the medication that she needed. See, Hendry Dep., p. 34. However, Hendry recognizes that this accommodation could not have gone on indefinitely, particularly since eventually it would have consumed all of her vacation days. Id. In fact, at the time she left GTE, none of the medications she had tried had controlled her migraines. See, Hendry Aff. ¶ 3. 8 In short, Hendry feels that she "should have been treated better." Hendry dep. p. 34.

On the other hand, GTE makes the point that regular attendance was an essential part of Hendry's job duties, and that when she was absent without prior notice the department could not...

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